Sri Muthukrishna Vs Sri Gopala

SRI CHIKKAMUTHU SINCE DECEASED BYHIS LRS SMT KAMALAMMA W/O LATE CHIKKAMUTHU AGED ABOUT 61 YEARS R/AT RAMPURA VILLAGE KOLLEGALA TALUK CHAMARAJANAGARA DISTRICT.

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SRI MAHADEVA W/O LATE CHIKKAMUTHU AGED ABOUT 46 YEARS R/AT RAMPURA VILLAGE KOLLEGALA TALUK CHAMARAJANAGARA DISTRICT.

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SMT MUNYAMMA

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W/O LATE MUTHU AGED ABOUT 66 YEARS R/AT RAMPURA VILLAGE KOLLEGALA TALUK CHAMARAJANAGARA DISTRICT.

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SRI VENKATARAMA S/O LATE MUTHU AGED ABOUT 49 YEARS R/AT RAMPURA VILLAGE KOLLEGALA TALUK CHAMARAJANAGARA DISTRICT.

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SRI NARAYANA S/O LATE MUTHU AGED ABOUT 45 YEARS R/AT RAMPURA VILLAGE KOLLEGALA TALUK CHAMARAJANAGARA DISTRICT.

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SMT CHIKKATHAYAMMA W/O LATE MUTHU AGED ABOUT 57 YEARS R/AT RAMPURA VILLAGE KOLLEGALA TALUK CHAMARAJANAGARA DISTRICT.

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SRI MUTHURAJ S/O LATE MUTHU AGED ABOUT 51 YEARS R/AT RAMPURA VILLAGE KOLLEGALA TALUK CHAMARAJANAGARA DISTRICT.

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SRI MADAPPA S/O LATE MUTHU AGED ABOUT 45 YEARS R/AT RAMPURA VILLAGE KOLLEGALA TALUK CHAMARAJANAGARA DISTRICT.

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…RESPONDENTS

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(BY SRI. JAGADEESHACHARI.,ADVOCATE FOR R1)

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RSA FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.08.2018 PASSED IN RA.NO. 24/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., KOLLEGALA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 05.10.2016 PASSED IN OS.NO.96/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., KOLLEGAL.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri. Viswanatha Setty V, learned counsel appearing for the appellant and Sri. Jagadeeshachari, learned counsel appearing for respondent No.1.

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Defendant No. 5 is the appellant in this appeal challenging the validity of the judgment passed by the First Appellate Court in RA.No.24/2017, whereby the First Appellate Court reversed the judgment passed in OS.No.96/2011 dismissing the suit of the plaintiff seeking declaration in respect of the following immovable property (hereinafter referred to as the 'suit property').

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"µÉqÀÆå¯ï

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ZÁªÀÄgÁd£ÀUÀgÀ j.r. ºÀ£ÀÆgÀÄ ¸À¨ï.r.UÉ ¸ÉÃjzÀ CfÓ¥ÀÅgÀ UÁæªÀÄzÀ

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¸ÀªÉð. £ÀA.680/J1gÀ°è 2.69 JPÀgÉ «¹ÛÃtðzÀ d«ÄÃ¤UÉ ZÀPÀÄÌ §A¢:

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¥ÀÆªÀðPÉÌ : ªÀiÁzÀgÀªÀgÀ d«ÄÃ£ÀÄ :

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¥À²ÑªÀÄPÉÌ : vÀÄAUÁ«ÃgÀgÀªÀgÀ d«ÄÃ£ÀÄ : GvÀÛgÀPÉÌ : a£Áß¥ÀAiÀÄå£ÀªÀgÀ d«ÄÃ£ÀÄ :

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zÀQëtPÉÌ: UÁr zÁj ªÀÄvÀÄÛ £ÁUÀªÀÄä£ÀªÀgÀ d«ÄÃ£ÀÄ. F ªÀÄzsÀåzÀ°ègÀÄªÀ d«ÄÃ£ÀÄ ªÀiÁvÀæ"

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Facts in the nutshell which are utmost

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necessary for disposal of the present appeal are as under:

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3.1. In order to appreciate the relationship among

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the parties, genealogical tree is extracted hereunder:

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"ªÀA±ÀªÀÈPÀë
§ÄqÀæ (¥Ëw)
ªÀiÁzÀªÀÄä (¥Ëw)
(ºÉAqÀw)
ªÀÄÄvÀÛ (¥Ëw) (ªÀÄUÀ)
a£ÀßªÀÄä (¥Ëw) ªÀiÁgÀªÀÄä (¥Ëw)
(1 £ÉÃ ºÉAqÀw) (2 £ÉÃ ºÉAqÀw)
ªÀÄÄwÛ (65 ªÀ) ¨ÉÊAiÀÄªÀÄä(63 ªÀµÀð) UÉÆÃ¥Á® (61 ªÀµÀð) UÉÆÃ«AzÀ (57 ªÀµÀð) gÀÄQätÂ (52 ªÀµÀð)
(®UÀß) (®UÀß) (CfÃðzÁgÀgÀÄ) (®UÀß) (®UÀß)
ªÀÄÄQÛ (67 ªÀµÀð)
ªÀÄÄvÀÛ (65 ªÀ)
aPÀÌªÀÄÄvÀÛ (63ªÀ)

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F ªÉÄÃ®ÌAqÀ «ªÀgÀUÀ¼ÀÄ CfðzÁgÀgÁzÀ UÉÆÃ¥Á® JA§ £À£ÀUÉ w½zÀªÀÄnÖUÉ ¸ÀvÀåªÁVgÀÄvÀÛzÉAzÀÄ w½zÀÄ M¦à, §gÉ¬Ä¹, N¢¹, PÉÃ½ M¦à gÀÆdÄªÀiÁrgÀÄvÉÛÃ£É."

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3.2. As could be seen from the genealogical tree

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above, the common prepositus was one Budra. He had a son by name Madappa, who had a son by name Muthu.

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The said Muthu had two wives namely Chinnamma and Maramma. Muthu in the wedlock with Chinnamma had 5 children, namely, Muthi, Baiyamma, Gopala, Govindi and Rukmini. The said Muthu in the wedlock with Smt. Maramma had 3 children, namely, Muthi, Mutha and Chikkamuthu.

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3.3. Defendant No.5 is the son of the second wife's

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second child, by name Mutha. Suit of the plaintiff was one for declaration in respect of the suit property contending that he got the suit property by virtue of a partition, which is marked at Ex.P34. It is his case that the defendants without there being any right, title or interest, started interfering with the suit property. It is also contended that

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in the index of lands, necessary revenue entries were mutated after the partition.

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Upon receipt of suit summons, defendant Nos.

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1 and 2 appeared through advocate and defendant No.1 filed written statement. Defendant Nos.3 to 10 were placed ex-parte . But, there was a memo filed adopting the written statement filed by defendant No.1 on behalf of other defendants also. It is further contended that defendant No.4-Muniyamma had already filed the suit against defendant No.1 in OS.No.276/2010 and therefore, the present suit is not maintainable.

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4.1 It is also contended that land in Sy.No.680/B1 measuring 2 acres and land in Sy.No.680/B measuring 2.5 acres are vacant site and belong to the defendants’ family. Therefore, plaintiff cannot maintain a suit for declaration. In the written statement, it was admitted that there were challenge to the mutation entries in RA.No.71/2008-09 before the Assistant Commissioner, Kollegal.

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4.2. Defendant No.1 also contended that Muthu s/o

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Budra had been granted the land under DR No.507 dated

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14.07.1969 by the Government and after the grant, Muthu enjoyed the suit property in his lifetime and gave western half portion in the suit property in favour of defendant No.1 and eastern half of the property was retained by him and after his death, revenue entries were transferred in the name of defendant No.1.

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4.3. It is also contended by defendant No.1 that, when the plaintiff tried to interfere with the said western half portion of the property, there was a suit for permanent injunction filed in OS.No.76/2010 against the plaintiff and therefore, suit filed by the plaintiff for declaration in respect of the suit property declaring that plaintiff is the owner of the suit property needs to be dismissed.

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Learned trial Judge after raising necessary issues and after recording the evidence of the parties, did not believe the probative value of Ex.P34-Partition deed and dismissed the suit of the plaintiff.

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Being agreed by the same, plaintiff filed an appeal before the First Appellate Court in RA.No.24/2017. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and reversed the judgment of the trial Court and decreed the suit of the plaintiff inter-alia holding in paragraph No.42 to 52 as under:

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"42. The Plaintiff has sought for declaration of his title over suit schedule property on the count that the suit schedule property was fallen to his share in a family partition as evidenced by Ex.P34. The Ex.P34 is an unregistered insufficiently stamped instrument. The Plaintiff has paid duty and penalty. The defect of non-registration of the instrument cannot be cured subsequently. The plaintiff by paying duty and penalty on the instrument is able to tender Ex.P34 in evidence for collateral purpose. The following questions are to determined for proper adjudication of matter in dispute:

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1) Whether the plaintiff proves that he has antecedent title in the in the suit schedule property?

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2) Whether the plaintiff has proved his title over suit schedule property

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independent of unregistered partition deed dated: 08.04.1974/Ex.P34?

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3) Whether the Plaintiff is entitled to recover possession of suit schedule property from the defendants?

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4) Whether the plaintiff is entitled for mesne profit.

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43. Section 6 of Hindu Succession Act, 1956 is now substituted by Hindu Succession (Amendment) Act, 2005 (39 of 2005) with effect from 09.09.2005. By virtue of amended Section 6 of the Act the oral partitions made subsequent to 20.12.2004 are not recognized. In this case the plaintiff is canvassing partition dated: 08.09.1974. Under Shastric Hindu Law and even prior to the advent of Act 39/2005 the oral partition or family arrangements were recognized. The law relating to family partition or oral partition was summed up by the Hon'ble High Court of Madras in the following decision as under:

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In the High Court of Judicature at Madras

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Appeal Suit No:1012 of 2004 & C.M.P.No:159/2012 Dated: 09.03.2012 Venkatasubramaniya Chettiar (died) and others

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Vs. 1. Perumal Chettiar and others 17. In 2001(1)CTC and 112 another [A.C.Lakshmipathy V.A.M.Chakrapani Reddiat and five others], the Division Bench of this Court elaborately considered the family arrangement/unregistered partition. After referring to relevant provisions from Indian Registration Act, 1908 and Stamp Act, 1899 as well as the decisions

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of the Supreme Court and also the earlier decisions of this Court, the Division Bench held as under:-

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"42. To sum up legal position

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(I) A family arrangement can be made orally,

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(II) If made orally, there being no document, no question of registration arises.

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(III) If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.

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(IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written. nature of phraseology of the writing and the circumstances in which and the purpose with which it was written.

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(V) However, a document in the a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.

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(VI) Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.

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(VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.

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(VIII) Whether the purpose is a collateral purpose, is a question of fact depends upon facts circumstances of each case. person cannot claim a right or title to a property under the said document, which is being looked into only for collateral purposes.

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(IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of specific bar in Section 35 of the Indian Stamp Act.

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44. In view of the principles stated in the above decision it is clear that the an instrument of partition which is not stamped and not registered cannot be used for any purpose including collateral purpose. In this case, the plaintiff has paid duty and penalty on Ex. P34/Partition deed dated: 08.04.1974. Hence, Ex.P34 was permitted to be exhibited by the Plaintiff before the learned Trial Court.

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45. The Payment of duty and penalty instrument/document cannot cure the defect of nonregistration. Now the question arises whether the plaintiff has acquired title under Ex.P34 and nonregistration of Ex.P34 bars his relief for declaration of In order to title in respect of suit schedule property. determine said question it is necessary to know whether a partition among coparceners or joint family members amounts to transfer of title/creation

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of title/extinguishment of title. In this regard it is useful to refer to the following decision of Hon'ble High Court of Karnataka

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LAWS(KAR) 2006 8 25 HIGH COURT OF KARNATAKA Coram: N. KUMAR J. Decided on August 24,2006 ARALAPPA VERSUS JAGANNATH

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21. THE word "vibhaga" in Sanskrit, "bhaga" in Kannada is usually rendered into English by the words "partition". It denotes adjustment of diverse rights regarding the whole by distributing portions of the aggregate. It is process by which the joint enjoyment of a property is transformed into an enjoyment in severally. It may be by the agreement between the parties or by a decree of the Court. However, in either of the cases, the parties to the partition possess an antecedent title in the property and through the process of partition, the antecedent title is specifically defined. Before partition, the property was enjoyed jointly and after partition, they would enjoy the property in severally. Therefore, in the partition no party gets the title for the first time. In other words, partition does not give title or creative title. If the party to the partition has an antecedent title to the property, it only enables him to obtain what is his own in a definite and specific form. Section 5 of the Transfer of Property Act contemplates transfer of property by a person whose title in the said property, to another person who has not title. In a partition, no one transfers title which he possesses in favour of a person who does not

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possess a title. Everyone has an antecedent title. Therefore, no conveyance is involved, in the process as confermant of a new title is not necessary. It does not amount to transfer. Therefore, partition is not a transfer and by partition no body acquires title to any property for the first time. Consequently the partition deed only recognizes an existing right, which each party to the deed has in the joint property and no right spring from the deed of partition.

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46. In view of the principles stated in the

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above precedent it is clear that a partition does not amount to transfer and by partition no body acquires title to any property for the first time, it is only a recognition of antecedent title in the joint property and no rights accrues to the party to the partition deed for the first time.

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47. In the light of above proposition the recitals of Ex. P34 is examined. Ex.P34 was made among 1) Muthan (husband of defendant No:4) 2) Chikka Muthan (defendant No:1) and 3) Gopalan (Plaintiff) on 08.04.1974. Wherein, it is clearly recited that they intend to divide the joint family properties including movable and immovable properties hitherto enjoyed by them jointly. They have ade allotment of shares to each of them as per the advice of Panchayatdars. They have divided the joint family properties as under:

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Schedule 'A' -MUTHAN (husband of

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defendant No:4)

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1) Agricultural land Bg.Sy.No:680/B 2A 50C, Ajjipura Village;

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2) Thatched House of 3 ankanas measuring 3 Cubits and 25 Kamba X 25Cubits including vacant site measuring 13 X 5 Cubits situated at Ramapura Village

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Schedule 'B' -CHIKKAMUTHAN (Defendant

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No:1)

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1) Agricultural land Bg.Sy.No:680/B1 2A 00C, Ajjipura Village; ankanas

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2) Thatched House of 3 measuring 3 Cubits and 25 Kamba X 25Cubits including vacant site and passage situated at Ramapura Village Schedule 'C'GOPALA (Plaintiff) 1) Agricultural land Bg.Sy.No:680/A1 2A 70C, Ajjipura Village:

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48. In Ex.P34 the properties allotted to the shares of sons of Late Mutha S/o Late Budra are specifically demarcated. The khata and RTC of Suit schedule property which is allotted to the share of Plaintiff continued in the name of Late Mutha S/o Late Budra till such time the defendants got the name of second defendant Smt.Kalamma and Mutha, husband of defendant No:4. They got their names mutated in their names without any basis by just manipulation by taking undue advantage of similarities in the name of Late Mutha S/o Late Budra

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and Mutha husband of defendant No:4. It has been already held that the defendants have failed to prove that Eastern half portion of Suit Schedule property was transferred to the name of defendant No:1 in a lawful manner.

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49. The recitals of Ex.P34 show that the parties to the deed have partitioned the properties as per the advice wishers in tune with their possession and enjoyment. They were residing in a common dwelling house but in different parts along with their respective family members. It is not the case of the defendants that they were living as a single unit and having common mess and worship. Among the signatories of Ex.P34 the plaintiff and defendant No:1 are alive. The defendant No:1 has not entered witness box to deny his LTM found on Ex.P34. Instead, his wife defendant No:2 adduced evidence. The defendants have not specifically denied the execution of Ex.P34 by Plaintiff, defendant No:1 and Mutha husband of defendant No.4.

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50. In view of the law stated by Hon'ble High Court of Karnataka, when no transfer of property occurs in a partition there is no acquisition of title for the first time by parties to partition. In a partition the sharers would demarcate and define their respective shares only. Hence non-registration of Ex. P34 will not come in way of plaintiff to seek the relief of declaration.

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51. The plaintiff has exhibited Ex.P17, Ex.P18. voters list extract, Ex.P19, Ex.P23, Ex.P24 ration cards standing in the name of Plaintiff Gopala, Chikkamutha, Chinnamma respectively. Ex. P26Muttu, Ex.P27-Chikkamutha, Ex.P30-Gopala, demand register extracts of residential properties, Ex.P31, 32, and Ex.P33 tax paid receipts. All these documents show that the parties to Ex.P34 have acted upon the partition and are residing separately. Now, the defendants are estopped from retracting from the partition. In this regard I rely on a decision of Hon'ble Supreme Court of India reported in

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LAWS (SC) 2009 12 55

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Narendra Kante V Anuradha Kante

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17. In support of his aforesaid submission, Mr. Ranjit Kumar firstly relied on the decision of the Three Judge Bench in Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119 in which the question of registration of a family arrangement had fallen for consideration. Their Lordships held that a family arrangement may be even oral in which case no registration is necessary. Registration would be necessary only if the terms of the family arrangement are reduced into writing but there also a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere Memorandum prepared after the family arrangement had already been made, either for the purpose of recording or for information of the Court for making necessary mutation. In such a case, the Memorandum itself does not

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create or extinguish any right in the immovable properties and, therefore, neither does it fall within the mischief of Section 17(2) of the Registration Act nor is it compulsorily registrable. Their Lordships went on further to conclude that a document, which was no more than a memorandum of what had been agreed to, did not require registration.

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18. While holding as above, Their Lordships also indicated that even if a Family Arrangement, which required registration was not registered, it would operate as a complete estoppel against the parties, which had taken advantage therof.

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52. In view of the above discussion I am of the opinion that the plaintiff has proved allotment of suit schedule property in his favour. The nonregistration of Ex.P34 is not a bar to have the relief of declaration of title by the plaintiff in respect of suit schedule property. The possession of suit schedule property by the defendants is illegal and against the interest of the plaintiff. Hence, they are liable to deliver the possession of suit schedule property to the plaintiff."

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Being further aggrieved by the order of the

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First Appellate Court, it is defendant No.5, who has preferred the present appeal on the following grounds and substantial questions of law :

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" GROUNDS :

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The learned Judge of the 1st appellate court has erred in failing to see that the appellant and late Chikkamuthu and other respondents have denied the relationship of the respondent No.1 as contended by him that he is the son of late Mutha.

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 The learned Judge of the 1st appellate court has erred in failing to see that there is no alleged oral partition among the appellant's father Muthu and the respondent No.1 and 2 in respect of the properties left behind by late Mutha, S/o.Budra as claimed by the respondent and the suit schedule property, much less another khaneshumari number property is not allotted to the share of the respondent No.1 at any point of time. Even as per the Ex.P-1 produced by the respondent No.1 which clearly demonstrates that Mutha S/o Budra and Mutha S/o Mutha and the same is not considered by the 1st appellate court and the 1st appellate court has also failed to consider the facts and the pleadings in the plaint at para 3 of the suit filed by respondent No.4 in OS NO.276/2010 and the written statement filed by respondent No.2 Chikkamuthu at para 7 of his written statement filed in OS No.96/2011and the

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said facts are lost sight by the first appellate court.

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The learned Judge of the 1 appellate court has erred in failing to see that the respondent No.1 has set up Ex.P-34 as if the same is a partition deed and under which he has acquired the suit schedule property, which is seriously disputed by the appellants.

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The learned Judge of the 1 appellate court has erred in failing to see that there was already a suit filed by the mother of the appellant i.e., the respondent No.4 has already filed a suit in respect of the suit schedule property in O.S.No.276/2010 on the file of the Senior Civil Judge, Kollegal and that the same was also pending and that there is a serious dispute with regard to the title of the respondent No.1 in respect of the schedule property.

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The learned Judge of the 1^st appellate court has erred in failing to see that has ignored the fact that even though while rendering the Judgment, the respondent No.1 is also son of Mutha along with the deceased respondent No.2 and the appellant's father Muthu and that all the three of them are the sons of Muthu, S/o.Budra and the Hon'ble Trial Court has rightly taken a view that

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the partition of the properties among the appellant's father Muthu and the respondent No.1 and 2 and has rightly dismissed the suit of the respondent No.1.

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The learned Judge of the 1^st appellate court has erred in faiing to see that has also ignored the fact that the Trial Court while answering to the Issue No.2 in negative has rightly come to the conclusion that the respondent No.1 has utterly failed to prove that he is the absolute owner of the suit schedule property and the same is allotted to his share in the alleged family partition taken place among themselves.

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The learned Judge of the 1 appellate court has ignored the fact that the suit schedule property is granted in favour of Muthu, S/o.Budra and that the respondent No.1 alone cannot lay a claim of absolute ownership over the said property as rightly admitted by the respondent No.1 that the appellant's father Muthu and the deceased respondent No.2 are also his bothers and that the partition is not proved by the respondent No.1.

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The learned Judge of the 1 appellate court has also erred in failing to see that the respondent No.1 has utterly failed to prove that the eastern half portion of the suit schedule property is fell to

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his share and he was in possession of the same and in this regard the Trial Court has rightly held that he failed to prove the Issue No.5 and answered the same in negative.

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 The learned Judge of the 1 appellate court has also erred in failing to see that the respondent No.1 has claimed that he has leased the schedule property in favour of the respondent No.1 and that the respondent No.1 has came in possession of the suit schedule property and further alleged that the respondent No.3 and 4 have illegally got transferred the revenue records and are making claim over the schedule property, but the respondent No.1 has utterly failed to prove the same before the Trial Court and on taking in to consideration of the same, the Trial Court has rightly pleased to dismiss the suit of the respondent No.1, but the first appellate Court while rendering the Judgment has ignored the said facts and has wrongly come to the conclusion that the plaintiff has proved the Issue No.2, 4, 5 and 6 also and has decreed the suit as prayed for while allowing the appeal, which is against to the law and facts.

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The learned Judge of the 1^st appellate court has erred in failing to see that the Judgment and Decree of the trial court by allowing the appeal

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and setting aside the Judgment and Decree of the Trial Court.

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The learned Judge of the 1^st appellate court has erred in failing to see that the trial court had rightly held that Ex.P-34 being an unregistered partition deed and unacceptable to prove any partition. It is humbly submitted that, this Document Ex.P34 could not be proved to show any partition in view of bar under Section 91 of the Evidence Act and Section 17 of the Registration Act and it could only be considered for collateral purposes.

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The learned Judge of the 1^st appellate court was totally in error in holding that since under Ex.P-34 no party acquired the right for the first time and hence it does not amount to transfer and nonregistration of Ex.P34 would not come in the way of seeking declaration by the plaintiff.

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The learned Judge of the 1" appellate court totally mis applied the law laid down by this Hon'ble Court in Aralappa Vs.Jagannath Laws (KAR) 2006 Page 825. It is humbly submitted that, only lays down that new rights are not created under a partition deed.

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The learned Judge of the 1 appellate court has erred in failing to see that if only a partition deed recites an earlier partition and given list of properties held by each party such a document is not compulsorily register able but Ex.P-34 is an out and out partition deed which is compulsorily registrable and it can be admitted in evidence only for a collateral purpose as provided under Sec.49 of the Registration Act as held in AIR 1988 SC 881 and pages 885 between Roshan Singh Vs.Zile Singh.

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The learned Judge of the 1^st appellate court has erred in ailing to see that the Trial Court had rightly held (para 27 of the Judgment) that the document Ex.P-17 to P-27 and P-32 to Ex.P-34 only could show separate lining by the partition but can not prove partition which was proper but the appellate court relied upon Ex.P-34 as if it was a partition deed which was totally erroneous particularly when all the sharers were not parties.

¶183

The learned Judge of the 1 appellate court has erred in in ignoring RTC entries showed the name of the respondents 3 and 4 only and not plaintiff in respect of the suit land.

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The appreciation of law in interpreting Ex.P34 unregistered document by the 1" Appellate Court

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is totally erroneous in view of Sec.49 of the Registration Act and Sec.91 of the Evidence Act.

¶189

The 1^st Appellate Court appreciation of law and evidence is wrong and has resulted in miscarriage of justice.

¶190

The Judgment passed by the 1ª Appellate Court is against to the law and facts.

¶191

The first appellate Court has not considered the case of the appellant and the respondent No.2 to 9 in a proper and perspective manner.

¶192

The reasons assigned by the 1 appellate Court for allowing the appeal to decree the suit of the respondent No.1 are all untenable and that the Judgment and Decree passed by the 1 Appellate Court is not sustainable in law and the same is liable to be set aside by this Hon'ble Court.

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SUBSTANTIAL QUESTIONS OF LAW:

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(a). Whether the first appellate Court has considered the fact that the schedule property was granted to Budran's son Mutha as on 14.7.1969 as per D.R.No.507/69 in respect of Sy No.680/A1, measuring 2.70 cents of Ajjipura village, and there was no partition among the appellant's father, alleged brother, the respondent No.1, and respondent 2 and that the suit schedule property was not allotted to the share of the respondent No.1 as per Ex.P-1 and P-2?

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(b). Whether the first appellate Court has considered the fact that there was no partition among the appellant's father, the respondent No.1 and 2 and that the suit schedule property was not allotted to the share of the respondent No.1?

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(c). Whether the first appellate Court is right in reversing the Judgment and Decree passed by the Trial Court in the first appeal?

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(d). Whether the first appellate Court has considered the fact that on the basis of the unregistered partition deed relied upon by the respondent No.1, he is not entitled for the relief of declaration of title and seeking possession, when the respondent No.1 has completely failed to prove the alleged partition deed Ex.P-34 and the relationship with Mutha S/o Budra?

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(e). Whether the 1^st appellate court was right in granting a decree for declaration on the basis of un-registered partition deed Ex.P-34 in view of Sec.91 of the Evidence Act and Sec.17 and 49 of the Registration Act."

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Sri. Viswanatha Setty V, learned counsel

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appearing for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that the First Appellate Court grossly erred in decreeing the suit of the plaintiff by holding that Ex.P34 confers the right in respect of the suit property on the plaintiff. He also contended that, when Muthu being the father of the

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plaintiff as well as the defendants, having effected the partition orally and granted western portion to the defendant No.1, and retained the eastern portion for himself. Therefore, laying the claim in respect of the suit property by the plaintiff based on Ex.P34 could not have

¶206

been countenanced by the First Appellate Court and decreed the suit of the plaintiff, which has resulted in miscarriage of justice and sought for admitting the appeal on the aforesaid substantial questions of law.

¶207

Per contra, Sri. Jagadeeshachari, learned counsel appearing for respondent No.1 supports the impugned judgments. He would contend that admittedly, defendant No.5 did not appear before the trial Court and written statement filed by defendant No.1 is adopted other defendants by filing a memo, is not a written statement in the eye of law insofar as defendant No.5 is concerned, which has not been properly appreciated by the learned trial Judge.

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He would also contend that, Ex.P34 is the document under which even defendants have got a share in the property when they have admitted and when they are in possession of the properties, which are mentioned in Ex.P34, it should not lie in the mouth of the appellant that plaintiff is stranger to the family and sought for dismissal of the appeal.

¶211

Having heard the parties in detail, this Court perused the material on record meticulously.

¶212

On such perusal of the material on record, it is crystal and clear that, Muthu had two wives namely Chinnamma and Maramma. In the wedlock of Muthu with Chinnamma, 5 children were born and plaintiff is one among them.

¶213

In the wedlock of Muthu with Maramma, three children were born namely Muthi, Mutha and Chikkamutha. Defendant No.5 is the son of second wife's second child of Muthu.

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Admittedly, defendant No.5 did not choose to contest the suit as he remained ex-parte before the Trial Court. It is defendant No.1, who contested the suit by filing a detail written statement.

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However, learned counsel for defendant No.1 filed a memo before the trial Court that, other defendants would adopt the written statement.

¶218

Admittedly, the other defendants did not engage the services of an Advocate and placed ex-parte. At the most, defendant No.2 had engaged the counsel could have been treated as the person, who adopted the written statement of defendant No.1 and not defendant Nos.3 to 9.

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Further, defendant No.5 did not file any crossobjection or contest the appeal before the First Appellate

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Court.

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It is only when the First Appellate Court reversed the finding by accepting the probative value of Ex.P.34, the defendant No.5 has chosen to file the present appeal.

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In other words, before the Trial Court or before the First Appellate Court, defendant No.5 did not choose to contest the contentions urged on behalf of the plaintiff.

¶225

Therefore, for the first time, before this Court, in this second appeal, defendant No.5 should not be allowed to contend that plaintiff is the stranger to the suit property.

¶226

Further, as per Ex.P.34, defendants have also got share in the property left behind Mutha. When they are enjoying the property that has fallen to their share, it should not lie in the mouth of defendant No.5 that plaintiff is the stranger to the family and as such, he had no right

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over the suit property.

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Admittedly, the document that is placed on record on behalf of the plaintiff to lay a claim in respect of the suit property is the partition deed marked at Ex.P.34. Mutation entries have been settled by taking the matter up to the Court of Assistant Commissioner.

¶231

Taking note of these aspects of the matter and plaintiff being the son of Mutha, born in the wedlock of Chinnamma, as per Ex.P.34, plaintiff laying the claim in respect of the suit property is thus just and proper which has been rightly appreciated by the First Appellate Court while reversing the judgment of the Trial Court and dismissing the suit of the plaintiff.

¶232

Further, the First Appellate Court not only supplied cogent and convincing reasons for accepting the probative value of Ex.P.34 but has also placed reliance on the settled principles of law including the principles of law enunciated by this Court in the case of Aralappa v. Jagannath referred to supra.

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